Marks prevails in lawsuit over Aspen election ballots

ASPEN – Election activist Marilyn Marks has prevailed in her quest to inspect ballots cast in the 2009 city of Aspen election.

The Colorado Supreme Court has reversed its decision to hear the case, the city learned Thursday morning. That means a Court of Appeals ruling that supports Marks’ position will stand.

The state’s high court had agreed in April to hear the city of Aspen’s motion to appeal the Court of Appeals decision. There was no explanation from the Supreme Court regarding its change of direction, but it means the Court of Appeals ruling in Marks’ lawsuit against City Clerk Kathryn Koch, custodian of the ballots, has been upheld.

“Marks v. Koch is now clearly the law of the land,” Marks said.

“I love closure,” was all Koch had to say about the latest development.

Both Marks and city attorney Jim True expressed surprise Thursday at the turn of events and the city, in a prepared statement, said it was “disappointed” but will comply with the Court of Appeals decision and make the 2009 ballots available to Marks for inspection.

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The city’s Election Commission will set up a procedure to comply with Marks’ request, True confirmed, but Marks said she’s not in a rush to inspect the digital images and paper ballots that were generated in 2009 – the first and only election in which the city used instant runoff voting.

“I don’t think I’ll be running down to City Hall next week,” said Marks, who said deadlines and hearings in her other legal battles around the state, also related to ballot issues, are keeping her busy. Still, she said she’d like to make arrangements within the next couple of weeks to view the city ballots.

Marks was a candidate for mayor in the 2009 election, losing to Mick Ireland. The city denied her request to view the ballots, citing citizens’ constitutional right to a secret ballot, but Marks asserted that citizens have a right to view ballots and verify the results of an election. She also said, however, that she had no interest in overturning the results generated by the city’s only stab at instant runoff voting.

After 2009, voters nixed the use of instant runoff voting, or IRV, a procedure that required them to rank candidates on the ballot. The ballots were then tallied in a computerized process that determined the winners of round one, and then retallied to determine the runoff winners from among the top vote-getters in the first round. The city has since gone back to holding its City Council and mayoral elections in May and a separate runoff election, if one is necessary, a month later.

The city has never been concerned about release of the ballots as it relates to the results of the election, True said in city’s the statement.

“In fact the city believes that an examination of the ballot images from 2009 will confirm the validity of the election and the efforts of the city to conduct a fair and honest instant runoff election. The only concern has been as it relates to the possibly that the Colorado Constitutional right to a secret ballot has been lessened,” True said in the statement.

For Marks, verifying the results of instant runoff voting takes a back seat to what she said was her overriding goal.

“More important than looking at the ballots is the policy of transparency that’s now been clearly established across the state,” she said. “Elections belong to the people and elections are verifiable by the people.”

Still, the Supreme Court’s about-face was surprising, especially since the city had already filed its opening brief, but Marks’ attorney had not yet filed a response.

“I was completely surprised that the Supreme Court reversed its decision to take the case – flabbergasted,” True said.

“We’re very surprised – thrilled,” said Marks, whose attorney received word from True about the court’s decision. “We assumed this was going to go forward and be heard by the court.”

Both True and Marks said recent action by the Colorado Legislature, affirming that cast ballots are open to examination under the state’s Open Records Law, may have played a role in the high court’s decision. The Elections and Open Records bill, signed into law earlier this month by Gov. John Hickenlooper, confirms that ballots are public record, but sets limits on when they can be viewed and makes them accessible only to “interested parties” in an election at certain times. Marks opposed the bill.

Though Marks may now view the 2009 ballots, the city clerk is required, according to the Court of Appeals ruling, to exclude ballots from examination if they contain any markings that could identify a voter. Essentially the same safeguard was adopted by the Legislature in its bill, True noted.

Left unresolved is city payment of Marks’ legal fees in the case, awarded by the Court of Appeals. She said they amount to more than $100,000. True said he didn’t know how much the city spent on its defense, but after prevailing in the case at the district court level two years ago, the city was seeking about $67,000 in costs from Marks.

Marks said she hopes the fee issue can be resolved without further court action.

“I’m very much hoping we can come to a reasonable accommodation and not have to keep fighting – over attorney’s fees or anything,” she said.